Between the Lines: Bad Cop

Passions have been running high on the issue of sexual assault on college campuses, with women telling wrenching stories, universities being accused of failing victims, and the federal government seeking ways to force schools to do better. It seems like an unimpeachable cause. But, like many moral crusades, this one relies on too many uncritically accepted claims, often embraces blind zealotry, and has the potential to hurt innocent people without necessarily aiding those it seeks to help.

As proof of the catastrophic scope of the problem, we are told that one in five college women will be sexually assaulted by the time they graduate. But this figure comes from surveys in which the questions used to measure alcohol- or drug-facilitated sexual assault are worded so broadly as to lump together incapacitation and impairment, and in which most women classified as victims of rape do not believe they were raped and do not report the incident because they don’t think it’s serious enough to report.

Much-publicized personal narratives of sexual assault are likewise plagued by fuzzy definitions, ranging from violent rape to intoxicated sex in which the woman feels she was too drunk to properly consent. A recent letter in The Harvard Crimson from an anonymous student who failed in her quest for redress illustrates these gray areas. The letter describes a drunken encounter in which the woman never said she wanted to stop, only telling the male student to “stop kissing [her] aggressively,” and “obeyed” when he asked her to satisfy him. When the account was posted on Slate, the liberal online publication, even many commenters usually sympathetic to rape accusers felt the man’s behavior sounded boorish but not criminal.

At Yale, as an official memo released last summer reveals, the definition of “non-consensual sex” in disciplinary proceedings is so broad that it includes reciprocating a sexual act without an explicit signal to go ahead—even if you stop immediately when asked to stop. Ironically, this creates a Catch-22, as universities find themselves criticized for insufficiently harsh punishments for non-consensual sex.

Universities are under strong pressure from activists, backed by the federal government, to use a “preponderance of the evidence” standard in adjudicating sexual assault complaints. This is the lowest legal burden of proof, often defined as meaning that it’s more likely than not that the assault occurred. (Traditionally, disciplinary charges by students have been judged by the higher standard of “clear and convincing evidence.”) But what does that mean in practice, especially in he-said/she-said cases? Since anti-rape activists insist that wrongful accusations are extremely rare (and demand that college investigators and “judges” be trained in that dogma), the goal seems to be a presumption of guilt for any accused student, unless there is strong proof of innocence.

Obviously, this is not a question of sending people to prison. Nonetheless, it means that a student may be expelled from college, with a black mark that will follow him to other schools and places of employment, and in some ways acquire the equivalent of conviction for a very serious crime without any of the safeguards of a trial.

While the media have focused on women’s claims of the universities’ inadequate response to sexual assault complaints, there is also a growing number of lawsuits by male students who say they were railroaded by kangaroo courts. This trend will no doubt continue if schools are strong-armed into a more hard-line approach.

But no matter how tough colleges may get on sexual assault, real victims are also ill-served by having such offenses treated as college disciplinary violations rather than crimes. Emma Sulkowicz, who is suing Columbia University after what she says was a badly botched rape investigation, describes a terrifying, painful, violent attack. If true, the answer is not to kick the perpetrator out of school and leave him free to seek victims elsewhere; it is to put him in jail. Yet Sulkowicz never went to the police, apparently believing the university process would be more victim-friendly.

Victims of sexual assault should be encouraged to report these crimes to law enforcement and document the evidence. While colleges certainly have a role in ensuring student safety, they should not be playing cop or judges—or set themselves up as a morals police regulating non-criminal sexual behavior.•

Cathy Young is a contributing editor at Reason magazine and a columnist at The Boston Globe. She is the author of Growing Up in Moscow: Memories of a Soviet Girlhood.